__________ No. 96-2390

__________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Terri A. Payseno, * * Appellant. *

__________ Submitted: December 10, 1996 Filed: January 8, 1997

__________ Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

__________ MURPHY, Circuit Judge. Terri A. Payseno appeals from her eighteen month sentence for inte rstate transportation of stolen property in violation of 1 8 U.S.C. § 2314. She charges that the district court erred i n enhancing her guidelines sentence. We remand for resentencing.

In c alculating her total offense level, the district cour t imposed a two level increase for more than minimal planning under U.S.S.G. § 2B1.1(b)(4)(A) and a four level increase for being i n the business of receiving and selling stolen goods under U.S.S.G. § 2 B1.1(b)(4)(B). Payseno contends on appeal that U.S.S.G. § 2B1.1( b)(4) does not permit enhancements under both subparts (A ) and (B), and that while she admits to transporting stolen pr operty, the record does not establish that she was in the business o f receivingand selling stolen goods. She also argues that th e addition of both enhancements to the offense level for her-2-

underl ying charge amounts to impermissible triple counting. Th e United States concedes that enhancement under both subparts (A) and (B) is improper, but argues that Payseno did not raise he r objections to the district court, that there is no need to remand be cause her sentence is still within the appropriate guidelin e range, and that the record established she was in the business of receiving and selling stolen goods.
The correct application of the guidelines is a question of l aw subject to de novo review, see United States v. Werlinger , 8 94 F.2d 1015, 1016 (8th Cir. 1990), but factual determinations are r eviewed under a clearly erroneous standard. See United States v
. Phillippi , 911 F.2d 149, 152 (8th Cir. 1990).
The Presentence Investigation Report (PSR) contains Payseno’s ad missionto selling stolen animal pharmaceuticals and implants
. Some of these items she stole from places where she worked, an d othe rs she burglarized elsewhere. She also received stole n pha rmaceuticals and implants from Tim Lewis which she then sold
. The PSR indicated that there was a factual basis for enhancements under U.S.S.G. §§ 2B1.1(b)(4)(A) and (B).

The only written objection to the PSR made on her behal f related to the calculation of the value of losses to the victims, but at the sentencing hearing Payseno tried to explain how s he came to obtain goods from Lewis. S ince her remarks appear to have been offered as an objection to the four point enhancement, that issue is suf ficiently preserved on appeal. The district court ma y receive objections at any time before imposition of sentence, Fed. R. Crim. P. 32(b)(6)(D), and the rules provide an opportunity a t th e sentencing hearing to comment on the PSR, Fed. R. Crim. P
. 32(c)(1). After hearing the comments of the parties, the cour t adopted the factual statements in the PSR as its findings of fact-3-

and proceeded to calculate the guideline range and impose se ntence.Under the “fence” test, the government must show that the 1 defendant was a person who buys and sells stolen property, and thereby encourages others to commit property crimes. See United States v. Warshawsky , 20 F.3d 204, 214 (6th Cir. 1994); United States v. Esquivel , 919 F.2d 957, 959 (5th Cir. 1990); United States v. Braslawsky , 913 F.2d 466, 468 (7th Cir. 1990). Under the “totality of the circumstances” test, the district court undertakes a case by case examination of the facts focusing on the "regularity and sophistication of a defendant’s operation." United States v. Zuniga , 66 F.3d 225, 228 (9th Cir. 1995) (citation omitted) (internal quotations omitted); see also , United States v. King , 21 F.3d 1302, 1306 (3d Cir. 1994); United States v. St. Cyr , 977 F.2d 698, 703 (1st Cir. 1992). -4- Th e court’s factual findings indicate that Payseno receive d and sold stolen goods for profit over an extended period of time. Her own version of the facts i n the PSR included an admission that she specifically purchased pro ducts from Lewis which she knew were stolen. The record was sufficient to support the finding tha t Payseno was in the business of receiving and selling stolen goods and to support the application of the U.S.S.G. § 2B1.1(b)(4)(B ) enhanc ement. Under these circumstances, it is not necessary t o employ either of the two compe ting tests used in other circuits to determine whether someone is in such a business. 1
Payseno argues that adding the two and four level enhancemen ts to her offense level for the underlying crime amounts to tripl e counti ng, citing United States v. Werlinger , 894 F.2d 1015 (8t h Cir. 1990). Werlingerheld that enhancements for both embez zlement and o bstruction of justice could not be based on the exact sam e behavior. In contrast, Paysen o will not be punished twice for the same behavior if one of the enhancements is applied. She pled to interstate transportation of stolen property with a value of more th an$20,000, for which she was assigned an offense level of 6 under U.S.S.G. § 2B1.1(b)(1)(G). This offense level can b e proper lyenhanced under § 2B1.1 (b)(4) for more than minima l-5-

planningor for being in the business of receiving and sellin g stolen goods. Neither of these enhancements is based on the same-6-

criminal behavior as her underlying charge.
Both parties agree that the district court erred in imposing both the two level enhancement under § 2B1.1(b)(4)(A) and the four level enhancement under § 2B1.1(b)(4)(B). Section 2B1.1(b)(4) is writte nwith the conjunction “or” between subparts (A) and (B)
. The clear meaning is that one enhancement or the other may b e applied to the offense level, but not both.

The government argues that a remand is unnecessary becaus e evenif the two level enhancement were eliminated, the 18 mont h sentence previously imposed would be within the new guidelin e range of 12- 18 months. The government’s argument assumes that th e district court would remove th at enhancement, rather than the four level enhancement, and select 18 months as the appropriate p oint in the guideline range. The 18 month sentence was at the low p oint of the original guideline range of 18-24 months, however. Reducin g her off ense level by two would make an 18 month sentence th e longes t sentence possible within the appropriate range. Th e di strict court should have the opportunity to consider th e possibilities.
Accordingly, the imposition of both enhancements in § 2B1.1(b)(4) is reversed, and the case is remanded for resent encing.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.